McCaslin v. McCord

• Decision Date: 23 April 1906
• Citation: 94 S.W. 79,116 Tenn. 690
• Parties: McCASLIN v. McCORD et al.
• Court: Tennessee Supreme Court

94 S.W. 79

116 Tenn. 690

McCASLIN v. McCORD et al.

Supreme Court of Tennessee.

April 23, 1906

Appeal from Circuit Court, Gibson County; Quintin Rankin, Special Judge.

Action by Green McCaslin against R. D. McCord and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

J. D Senter and Spl. Hill, for appellant.

Ed Smith, J. T. Peeler, and M. M. Clark, for appellees.

NEIL J.

The record discloses the following facts:

One John Lindsey, alias John Henry, had been convicted of the crime of arson in the circuit court of Henderson county, and sentenced by that court to serve a term in the state penitentiary for the offense. From this judgment he prayed an appeal to this court, and, pending the appeal, was confined in the county jail. He made his escape from the jail and went over into Benton county. The sheriff of Henderson county wrote to the sheriff of Benton county notifying him of the escape, and asking him to arrest Lindsey. An effort was made by the sheriff of Benton county, the defendant in error McCord, to arrest Lindsey while in the latter county, but Lindsey after firing at the officers, escaped by going through the floor of the house in which he was concealed. From Benton county he went over into Gibson county. About a week after Lindsey had thus gone into Gibson county, McCord, accompanied by the defendant Harris, went to Milan in the latter county, and engaged the defendant in error M. S. Clark to go with him for the purpose of arresting Lindsey. The three defendants in error left Milan after night intending to go to the house of one Wade Jacobs, under the belief that Lindsey would be found there. On the way, however, they stopped at the house of one West with whom Clark was well acquainted, and inquired it he knew of the whereabouts of the person they were seeking. Mr West informed them that Lindsey was at the home of plaintiff in error, McCaslin, had engaged to work for him for the year and was going under the name of John Henry. Relying upon this information the defendants in error went to McCaslin's place and waited near the house until about daylight, hoping to capture Lindsey on his way to the barn to feed the stock. However, seeing a light in the house, Harris went to the window and looked in. He was immediately discovered by Mrs McCaslin, who had begun to prepare breakfast for her family, and the alarm was given. The doors were slammed together and fastened, and the window shades were pulled down. In addition, some one in the house was heard to say: "Look out in there." Thereupon McCord went to the front door and Harris to the back door of the hall that passed between the two front rooms of the house. Harris at the back door cried out in a voice loud enough to be heard at the front door: "We are officers from Benton county and we have come to arrest John Henry, who is an escaped criminal and we are after him." He also demanded that the door be opened, and that they be allowed to enter. The people in the house did not open the door, and did not make any response. The call was loud enough for any one in the house to hear what was said. It is not shown, however, that any one in the house actually heard what was said. Mr. McCaslin says that he was partially deaf, and he did not hear what was said. After waiting a while and seeing that the door was not opened, Harris then pushed or broke open the hall door and entered the hall. McCord ran around the house and went into the hall after Harris, and Mr. Clark also followed. After the defendants in error got into the hall they heard some one in the house say again: "Look out in there." Thinking that the man they sought was in the east room they ran to that door, but before going in they again said they were officers from Benton county, and were seeking John Henry, and demanded that the door of the room be opened. Receiving no response, they opened the inner door and entered the east room. As they did so they saw some one get off of the bed on to the floor in the space between the bed and the wall. They seized this man thinking he was John Henry, but on turning a flash light upon him they saw he was not. They asked this man: "Where is John Henry?" He replied: "He is in the other room." Defendants in error then started towards the other room. When the reached the door of this room, the west room, they found it fastened. Defendant McCord demanded admittance, and again said to the person or persons in that room that he was the sheriff of Benton county and wanted John Henry, an escaped criminal, and demanded that the door be opened. In response to this demand some one in the room replied: "If you come in here I will kill you." Believing that Lindsey was in the room and had made the response above mentioned, Harris pushed open the door and entered the room. Just as he entered plaintiff in error McCaslin, who was standing behind the door, struck him a severe blow over the head with a pistol, and immediately began snapping the pistol in the face of Harris, endeavoring to shoot him. He and Harris clenched and rolled over on the bed, and then on to the floor, when the pistol fell from the hand of McCaslin or was struck from his hand by Harris. Mrs. McCaslin immediately picked up the pistol and placed it against Harris' head, and snapped it several times in an effort to shoot him. She also snapped it at McCord and tried to shoot him. McCord took hold of her arm to prevent her doing further injury, and thereupon Clark and McCord, acting together, separated Harris and McCaslin, but McCaslin flew at Harris again and continued to attack him until Harris knocked him down with his pistol.

None of the defendants knew Green McCaslin, but when they entered the room were under the impression that he was John Lindsey, alias John Henry. It was too dark in the room to distinguish one person from another.

Mrs. McCaslin finally told the defendants in error that John Lindsey, alias John Henry, was not in the house, but was at the home of Henry Tettleton, who lived in a cabin on the farm. Upon receiving this information McCord apologized for the mistake, and went to the home of Tettleton, and arrested Lindsey.

The foregoing is the substance of the evidence given by the defendants in error. The evidence of the plaintiff in error does not differ materially from what has just been said, except that he says he did not hear any demand for admission before the door was broken into or at any time until defendants in error came to his room door which opened into the hall, and he then heard them say, "If you don't open the door I will kill you"; that this is all he heard them say which he could understand.

Mrs. McCaslin says she heard them trying to get into the back hall door, "beating on it, saying something." She also testifies that when the defendants got to the door of the room in which she and her husband were at the time, they said: "If you don't open the door, we will kill you." She further says: "I did not hear them demand admittance until after they had got into the house, and had been in the east room and had come back to our door and said: 'If you don't open the door, we will kill you."'

The defendants in error had no warrant of arrest.

Verdict and judgment were rendered in favor of the defendants, motion for new trial was made and overruled, and thereupon the plaintiffs appealed to this court, and have here assigned errors.

The first error concerns certain special pleas filed by the defendant. We need not consider this, as the questions raised under these pleas arise also under the objections made to the charge of the court in subsequent assignments which we shall now state.

The second assignment is that the court erred in charging the jury as follows:

"If you find that the defendants had received information that the felon, Lindsey, was at the plaintiff's house, and they honestly believed he was in the house at the time they made the entry, that a reasonably prudent man would have been justified in so believing from the information and circumstances which they had before them; and if you further find that the defendants while so believing, went to the plaintiff's house for the purpose of arresting the felon, Lindsey, and that the defendants gave the plaintiff notice of their intention to make such arrest, or informed him of their business there, and that the plaintiff refused to admit the defendants into his residence for such purpose, and did not inform them that the felon, Lindsey, was not there, then the defendants were justified in making an entry into the house by force, for the purpose of arresting the felon, even though it turned out afterwards that they were mistaken and that the felon, Lindsey, was not in fact in the house at the time the entry was forced. If you find that the entry was made under the circumstances just stated, and that the defendants did not use unnecessary force or violence in making the entry, or on the plaintiff after they had made the entry, you should return a verdict for the defendant."

The third assignment is that the court erred in charging the jury as follows:

"If the defendant Harris went to the door of plaintiff's house and called out to the parties in the house, in substance, that he was an officer and wanted John Henry, and did this in a tone sufficiently loud to have been heard by the parties inside, and then waited a sufficient time for the parties within to have responded, and they made no response within a reasonable time, then this would be notice to the plaintiff and other parties inside the house of his intention to make the arrest of John Henry or Lindsey, and this would also amount to a refusal by the parties inside to admit them for that purpose. A failure to answer such a

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